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Reproduced with the permission of Oceana Publications

excerpt from

INTERNATIONAL SALES LAW

United Nations Convention on Contracts for the International Sale of Goods

Convention on the Limitation Period in the International Sale of Goods

Commentary by
Prof. Dr. jur. Dr. sc. oec. Fritz Enderlein
Prof. Dr. jur. Dr. sc. oec. Dietrich Maskow

Oceana Publications, 1992

Article 51 [Partial non-performance]

[TEXT OF THE UNIFORM LAW]

(1) If the seller delivers only a part of the goods [1] or if only a part of the goods delivered is in conformity with the contract [2], articles 46 to 50 [3] apply in respect of the part which is missing or which does not conform.

(2) The buyer may declare the contract avoided in its entirety [4] only if the failure to make delivery completely or in conformity with the contract amounts to a fundamental breach of the contract [5].

[COMMENTARY]

[1] If the seller delivers only part of the goods, the result may be a partial delay or non-conformity. In the latter case the documents indicate a higher than delivered quantity, and a notice under Article 39 need only to be given (c. also Article 35, note 3).

[2] As to conformity compare Article 35.

[3] It seems logical that the right to performance (Article 46) and the setting of a Nachfrist (Article 47), and a cure of a failure (Article 48) or a reduction of the price (Article 50) can only refer to the missing or non-conforming part of the goods. It is significant, however, that the right to avoid a contract (Article 49) as a matter of principle only relates to that part and not, as might be deduced from the wording of Article 49, to the contract in its entirety (Honnold, 329).

[4] Even if the seller has not performed within the Nachfrist set by the buyer, the latter may declare the contract avoided only in regard to the missing or non-conforming part (O.R., 44). Only if the partial non-delivery or the non-conforming performance constitutes a fundamental breach of contract (c. Article 25) can the buyer avoid the entire contract. Should the partial non-delivery refer to an instalment contract, the contract may be avoided as prescribed under Article 73.

[5] Concerning a fundamental breach of contract, compare Article 25. The buyer is not forced to sort out the non-conforming goods. The question is whether the non-conformity of part of the goods interferes with the use or salability of the remainder (Honnold, 330). [page 199]

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Pace Law School Institute of International Commercial Law - Last updated August 14, 2002
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